| 1 | The Economic Development, Trade & Banking Committee recommends |
| 2 | the following: |
| 3 |
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| 4 | Council/Committee Substitute |
| 5 | Remove the entire bill and insert: |
| 6 | A bill to be entitled |
| 7 | An act relating to the state minimum wage; amending s. |
| 8 | 95.11, F.S.; providing periods of limitations on actions |
| 9 | for violations of the Florida Minimum Wage Act; creating |
| 10 | s. 448.110, F.S., the Florida Minimum Wage Act; providing |
| 11 | legislative intent to implement s. 24, Art. X of the State |
| 12 | Constitution in accordance with authority granted to the |
| 13 | Legislature therein; requiring employers to pay certain |
| 14 | employees a minimum wage for all hours worked in Florida; |
| 15 | incorporating provisions of the federal Fair Labor |
| 16 | Standards Act; requiring the minimum wage to be adjusted |
| 17 | annually; providing a formula for calculating such |
| 18 | adjustment; requiring the Agency for Workforce Innovation |
| 19 | and the Department of Revenue to annually publish the |
| 20 | amount of the initial and adjusted minimum wage; providing |
| 21 | criteria for posting; requiring the agency to provide |
| 22 | written notice to certain employers; providing a deadline |
| 23 | for the notice to be mailed; providing that employers are |
| 24 | responsible for maintaining their current addresses with |
| 25 | the agency; requiring the agency to provide the department |
| 26 | with certain information; prohibiting discrimination or |
| 27 | adverse action against persons exercising constitutional |
| 28 | rights under s. 24, Art. X of the State Constitution; |
| 29 | providing for civil action by aggrieved persons; requiring |
| 30 | aggrieved persons bringing civil actions to provide |
| 31 | written notice to their employers alleged to have violated |
| 32 | the act; providing information that must be included in |
| 33 | the notice; providing a deadline by which an employer |
| 34 | alleged to have violated the act must pay the unpaid wages |
| 35 | in question or resolve the claim to the aggrieved person's |
| 36 | satisfaction; providing a statute of limitations period; |
| 37 | providing that aggrieved persons who prevail in their |
| 38 | actions may be entitled to liquidated damages and |
| 39 | reasonable attorney's fees and costs; authorizing |
| 40 | additional legal or equitable relief for aggrieved persons |
| 41 | who prevail in such actions; providing that punitive |
| 42 | damages may not be awarded; providing that actions brought |
| 43 | under the act are subject to s. 768.79, F.S.; authorizing |
| 44 | the Attorney General to bring a civil action and seek |
| 45 | injunctive relief; providing a fine; providing statutes of |
| 46 | limitations; authorizing class actions; declaring the act |
| 47 | the exclusive remedy under state law for violations of s. |
| 48 | 24, Art. X of the State Constitution; providing for |
| 49 | implementation measures; designating ss. 448.01-448.110, |
| 50 | F.S., as part I of ch. 448, F.S.; providing a part title; |
| 51 | providing for severability; providing an effective date. |
| 52 |
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| 53 | Be It Enacted by the Legislature of the State of Florida: |
| 54 |
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| 55 | Section 1. Paragraph (d) is added to subsection (2) and |
| 56 | paragraph (q) is added to subsection (3) of section 95.11, |
| 57 | Florida Statutes, to read: |
| 58 | 95.11 Limitations other than for the recovery of real |
| 59 | property.--Actions other than for recovery of real property |
| 60 | shall be commenced as follows: |
| 61 | (2) WITHIN FIVE YEARS.-- |
| 62 | (d) An action alleging a willful violation of s. 448.110. |
| 63 | (3) WITHIN FOUR YEARS.-- |
| 64 | (q) An action alleging a violation, other than a willful |
| 65 | violation, of s. 448.110. |
| 66 | Section 2. Section 448.110, Florida Statutes, is created |
| 67 | to read: |
| 68 | 448.110 State minimum wage; annual wage adjustment; |
| 69 | enforcement.-- |
| 70 | (1) This section may be cited as the "Florida Minimum Wage |
| 71 | Act." |
| 72 | (2) The purpose of this section is to provide measures |
| 73 | appropriate for the implementation of s. 24, Art. X of the State |
| 74 | Constitution, in accordance with authority granted to the |
| 75 | Legislature pursuant to s. 24(f), Art. X of the State |
| 76 | Constitution. |
| 77 | (3) Effective May 2, 2005, employers shall pay employees a |
| 78 | minimum wage at an hourly rate of $6.15 for all hours worked in |
| 79 | Florida. Only those individuals entitled to receive the federal |
| 80 | minimum wage under the federal Fair Labor Standards Act and its |
| 81 | implementing regulations shall be eligible to receive the state |
| 82 | minimum wage pursuant to s. 24, Art. X of the State Constitution |
| 83 | and this section. The provisions of ss. 213 and 214 of the |
| 84 | federal Fair Labor Standards Act, as interpreted by applicable |
| 85 | federal regulations and implemented by the Secretary of Labor, |
| 86 | are incorporated herein. |
| 87 | (4)(a) Beginning September 30, 2005, and annually on |
| 88 | September 30 thereafter, the Agency for Workforce Innovation |
| 89 | shall calculate an adjusted state minimum wage rate by |
| 90 | increasing the state minimum wage by the rate of inflation for |
| 91 | the 12 months prior to September 1. In calculating the adjusted |
| 92 | state minimum wage, the agency shall use the Consumer Price |
| 93 | Index for Urban Wage Earners and Clerical Workers, not |
| 94 | seasonally adjusted, for the South Region, or a successor index |
| 95 | as calculated by the United States Department of Labor. Each |
| 96 | adjusted state minimum wage rate shall take effect on the |
| 97 | following January 1, with the initial adjusted minimum wage rate |
| 98 | to take effect on January 1, 2006. |
| 99 | (b) The Agency for Workforce Innovation and the Department |
| 100 | of Revenue shall annually publish the amount of the initial and |
| 101 | adjusted state minimum wage, as applicable, and the effective |
| 102 | date. Publication shall occur by posting the adjusted state |
| 103 | minimum wage rate and the effective date on the Internet home |
| 104 | pages of the agency and the department by October 15 of each |
| 105 | year. In addition, to the extent funded in the General |
| 106 | Appropriations Act, the agency shall provide written notice of |
| 107 | the rate and the effective date of the adjusted state minimum |
| 108 | wage to all employers registered in the most current |
| 109 | unemployment compensation database. Such notice shall be mailed |
| 110 | by November 15 of each year using the addresses included in the |
| 111 | database. Employers are responsible for maintaining current |
| 112 | address information in the unemployment compensation database. |
| 113 | The agency shall not be responsible for failure to provide |
| 114 | notice due to incorrect or incomplete address information in the |
| 115 | database. The agency shall provide the Department of Revenue |
| 116 | with the state minimum wage rate information and effective date |
| 117 | in a timely manner. |
| 118 | (5) It shall be unlawful for an employer or any other |
| 119 | party to discriminate in any manner or take adverse action |
| 120 | against any person in retaliation for exercising rights |
| 121 | protected pursuant to s. 24, Art. X of the State Constitution. |
| 122 | Rights protected include, but are not limited to, the right to |
| 123 | file a complaint or inform any person of his or her potential |
| 124 | rights pursuant to s. 24, Art. X of the State Constitution and |
| 125 | to assist him or her in asserting such rights. |
| 126 | (6)(a) Any person aggrieved by a violation of this section |
| 127 | may bring a civil action in a court of competent jurisdiction |
| 128 | against an employer violating this section or a party violating |
| 129 | subsection (5). However, prior to bringing any claim for unpaid |
| 130 | minimum wages pursuant to this section, the person aggrieved |
| 131 | shall notify the employer alleged to have violated this section, |
| 132 | in writing, of an intent to initiate such an action. The notice |
| 133 | must identify the minimum wage to which the person aggrieved |
| 134 | claims entitlement, the actual or estimated work dates and hours |
| 135 | for which payment is sought, and the total amount of alleged |
| 136 | unpaid wages through the date of the notice. |
| 137 | (b) The employer shall have 15 calendar days after receipt |
| 138 | of the notice to pay the total amount of unpaid wages or |
| 139 | otherwise resolve the claim to the satisfaction of the person |
| 140 | aggrieved. The statute of limitations for bringing an action |
| 141 | pursuant to this section shall be tolled during this 15-day |
| 142 | period. If the employer fails to pay the total amount of unpaid |
| 143 | wages or otherwise resolve the claim to the satisfaction of the |
| 144 | person aggrieved, then the person aggrieved may bring a claim |
| 145 | for unpaid minimum wages, the terms of which must be consistent |
| 146 | with the contents of the notice. |
| 147 | (c)1. Upon prevailing in an action brought pursuant to |
| 148 | this section, aggrieved persons shall recover the full amount of |
| 149 | any unpaid back wages unlawfully withheld plus the same amount |
| 150 | as liquidated damages and shall be awarded reasonable attorney's |
| 151 | fees and costs. As provided under the Fair Labor Standards Act, |
| 152 | pursuant to s. 11 of the Portal-to-Portal Act of 1947, 29 U.S.C. |
| 153 | s. 260, if the employer proves by a preponderance of the |
| 154 | evidence that the act or omission giving rise to such action was |
| 155 | in good faith and that the employer had reasonable grounds for |
| 156 | believing that his or her act or omission was not a violation of |
| 157 | s. 24, Art. X of the State Constitution, the court may, in its |
| 158 | sound discretion, award no liquidated damages or award any |
| 159 | amount thereof not to exceed an amount equal to the amount of |
| 160 | unpaid minimum wages. The court shall not award any economic |
| 161 | damages on a claim for unpaid minimum wages not expressly |
| 162 | authorized in this section. |
| 163 | 2. Upon prevailing in an action brought pursuant to this |
| 164 | section, aggrieved persons shall also be entitled to such legal |
| 165 | or equitable relief as may be appropriate to remedy the |
| 166 | violation including, without limitation, reinstatement in |
| 167 | employment and injunctive relief. However, any entitlement to |
| 168 | legal or equitable relief in an action brought under s. 24, Art. |
| 169 | X of the State Constitution shall not include punitive damages. |
| 170 | (d) Any civil action brought under s. 24, Art. X of the |
| 171 | State Constitution and this section shall be subject to s. |
| 172 | 768.79. |
| 173 | (7) The Attorney General may bring a civil action to |
| 174 | enforce this section. The Attorney General may seek injunctive |
| 175 | relief. In addition to injunctive relief, or in lieu thereof, |
| 176 | for any employer or other person found to have willfully |
| 177 | violated this section, the Attorney General may seek to impose a |
| 178 | fine of $1,000 per violation, payable to the state. |
| 179 | (8) The statute of limitations for an action brought |
| 180 | pursuant to this section shall be 4 years from the date the |
| 181 | alleged violation occurred, except that in an action alleging a |
| 182 | willful violation the statute of limitations shall be 5 years |
| 183 | from the date the alleged violation occurred. |
| 184 | (9) Actions brought pursuant to this section may be |
| 185 | brought as a class action pursuant to Rule 1.220, Florida Rules |
| 186 | of Civil Procedure. In any class action brought pursuant to this |
| 187 | section, the plaintiffs shall prove, by a preponderance of the |
| 188 | evidence, the individual identity of each class member and the |
| 189 | individual damages of each class member. |
| 190 | (10) This section shall constitute the exclusive remedy |
| 191 | under state law for violations of s. 24, Art. X of the State |
| 192 | Constitution. |
| 193 | (11) Except for calculating the adjusted state minimum |
| 194 | wage and publishing the initial state minimum wage and any |
| 195 | annual adjustments thereto, the authority of the Agency for |
| 196 | Workforce Innovation in implementing s. 24, Art. X of the State |
| 197 | Constitution, pursuant to this section, shall be limited to that |
| 198 | authority expressly granted by the Legislature. |
| 199 | Section 3. Sections 448.01-448.110, Florida Statutes, are |
| 200 | designated as part I of chapter 448, Florida Statutes, and |
| 201 | entitled "Terms and Conditions of Employment." |
| 202 | Section 4. If any provision of this act or its application |
| 203 | to any person or circumstance is held invalid, the invalidity |
| 204 | shall not affect the other provisions or applications of the act |
| 205 | which can be given effect without the invalid provision or |
| 206 | application, and to this end the provisions of this act are |
| 207 | severable. |
| 208 | Section 5. This act shall take effect upon becoming a law. |